IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Santi Gripper,

Petitioner

 v.

Warden, Ross Correctional Institution,

Respondent

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:

:

:

:

Civil Action 2:12-cv-0364

Judge Frost

Magistrate Judge Abel

ORDER

Petitioner Santi Gripper, a State prisoner, brings this action under 28 U.S.C. §2254

alleging that he is in custody in violation of the Constitution of the United States. This

matter is before the Court petitioner Gripper's July 13, 2012 objections to Magistrate

Judge Abel’s July 2, 2012 Report and Recommendation that the petition for writ of

habeas corpus under 28 U.S.C. §2254 be denied because petitioner's claims were barred

by the one year statute of limitations under 28 U.S.C. § 2254(d)(1)(A). 

The petition alleges that petitioner was denied due process when the trial court

and his attorney failed to advise him of his right to appeal; that he was denied the

effective assistance of counsel because his attorney withheld information from him; and

that he was denied due process when the trial court denied his motion to withdraw his

guilty plea. None of these claims was timely presented to the Ohio courts. He filed both

a motion to withdraw his guilty plea and a motion for delayed appeal over 23 months

after he entered his guilty plea. The Ohio Court of Appeals held that his delayed appeal

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was untimely and that there was no merit to his motion to withdraw his guilty plea.

Petitioner argues that his claims should not be procedurally barred by the statute of

limitations because he was unaware of his right to appeal until he visited the Ross

Correctional Institution law library in April 2010.

This is the first time--in either state or federal court--that petitioner has pleaded

when he discovered that he had a right to appeal. The Ohio Court of Appeals denied

petitioner's motion for leave to file a delayed appeal because he had failed 

to provide a justifiable reason for filing his motion approximately two

years after his conviction. Further, appellant does not explain when he

learned he could have appealed from his guilty plea. The substantial lag in

appellant filing his motion for delayed appeal, without justifiable

explanation, is unreasonable and weighs against our granting the motion.

State of Ohio v. Santi Gripper, No. 10AP-398 (Ohio Court of Appeals for the Tenth

Appellate District, July 20, 2010), Doc. 1-5, PageID ## 26-27.

In affirming the trial court’s denial of petitioner's motion to vacate his guilty plea,

the Court of Appeals noted that at sentencing Gripper "'accept[ed] responsibility' for his

past and apologized to the victim's family for their loss. (May 21, 2008 Tr. 15.)" State of

Ohio v. Santi Gripper, No. 10AP-1186 (Ohio Court of Appeals for the Tenth Appellate

District, July 26, 2011), Doc. 1-7, PageID # 32. The ground for petitioner's motion to

vacate his guilty plea was that the trial court failed to advise him he would be subject to

post-release control. The trial court pointed out that his conviction did not carry postrelease control, and petitioner abandoned that argument on appeal. Id., PageID ## 34-

35. Instead, he argued that he had been denied the effective assistance of counsel. The

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Court of Appeals held that the argument could not be considered because it had not

been presented to the trial court. Further, were the court to consider the claim, it would

hold that it was without merit. Id., PageID ## 35-36. 

As to petitioner's argument that he was hindered by his lack of understanding of

English, the Court of Appeals found that Gripper told the trial judge that he could read

and write English. The Court of Appeals concluded that the record of petitioner's guilty

plea demonstrated his ability to understand English. Id., PageID # 35. 

Finally, the Court of Appeals noted that petitioner acknowledged during the plea

proceedings that his attorney had explained the written guilty plea to him and

answered all his questions. Id., PageID # 36. Petitioner's 16-year sentence was the result

of a bargained for joint sentencing recommendation of the prosecutor and the defense.

The trial court expressly told Gripper that by entering the guilty plea he was giving up

his right to appeal, and petitioner said that he understood. Id., PageID # 37.

An Ohio defendant has no right to appeal an agreed upon sentence. Pearl v.

Warden, Lebanon Correctional Institution, 2009 WL 890502 (S.D. Ohio March 30,

2009)(rejecting petitioner’s contention that 2244(d)(1)(B) was applicable because

petitioner had no right under Ohio law to appeal his agreed-to sentence); see, State v.

Porterfield, 106 Ohio St.3d 5, 10 (2005). Consequently, petitioner's claim that he had a

right to appeal his sentence is without merit.

Petitioner's claim that he was denied the effective assistance of counsel has not

been properly presented to the Ohio courts. Such claims, based on facts not of record,

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must be presented in a postconviction petition under Ohio Revised Code §§ 2953.21, et

seq. State v. Cole, 2 Ohio State 3d 112, 114 (1982); State v. Perry, 10 Ohio St. 2d 175 (1967).

Petitioner has not filed an Ohio postconviction petition.

Finally, petitioner's argument that the trial court erred in deny his motion for

leave to withdraw his guilty plea raises solely an Ohio law issue that cannot be a

ground for relief in federal habeas corpus.

Finding that petitioner's conviction became final 30 days after he entered his

guilty plea and that the statute of limitations ran before he presented any of his claims

to the Ohio courts, the Court concludes that the habeas corpus petition is barred by the

one-year statute of limitations under 28 U.S.C. § 2254(d)(1)(A). 

Upon de novo review as required by 28 U.S.C. §636(b)(1)(B), the Court ADOPTS

the Report and Recommendation. 

The petition for writ of habeas corpus is DENIED. This action is hereby

DISMISSED. The Clerk of Court is DIRECTED to enter JUDGMENT for respondent.

 /s/ Gregory L. Frost 

Gregory L. Frost

United States District Judge 

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